CLA-2:OT:RR:CTF:TCM H158855 GC
Port Director
Port of Charleston
200 East Bay Street
Charleston, South Carolina 29401
RE: Application for further review of protest number 1601-11-100095; Classification of diesel engine components in Chapter 99; Retroactive Application of the Manufacturing Enhancement Act of 2010
Dear Port Director:
This letter is our decision on protest and Application for Further Review (AFR) number 1601-11-100095, filed by Caterpillar Logistics Services, Inc. (protestant). The protest is against U.S. Customs and Border Protection’s (CBP) classification of various diesel engine components, under Chapter 99 of the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The protestant entered the components through your port on January 15, 2010 and the entries were liquidated as entered on November 26, 2010, classifying the merchandise under subheading 8408.20.20, HTSUS, which provides for engines of a kind used in vehicles of subheading 8701.20, or headings 8702, 8703, or 8704, HTSUS. The protestant filed the instant protest on February 14, 2011, claiming that the merchandise should also be classified in subheading 9902.25.31, HTSUS, pursuant to sections 2001 and 2002 of the Manufacturing Enhancement Act of 2010, which provides for duty free entry for certain goods.
ISSUE:
Whether the subject merchandise qualifies to be classified under subheading 9902.25.31, HTSUS, by application of the retroactive applicability provisions of the Manufacturing Enhancement Act of 2010.
LAW AND ANALYSIS:
Initially, we note that this matter is protestable as a classification decision pursuant to 19 U.S.C. §1514(a)(2). The protest was timely filed on February 14, 2011, within 180 days of the liquidation of the entry giving rise to the protest. See Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, §2103(2)(B) (codified as amended at 19 U.S.C. §1514(c)(3) (2006)). In addition further review of Protest 1601-11-100095 was properly accorded because the protestant has alleged new facts or legal arguments which were not previously considered in any ruling letter. See Section 174.24(c), CBP Regulations (19 C.F.R. §174.24(c)).
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. The HTSUS provisions at the time of entry under consideration are as follows:
8408 Compression-ignition internal combustion piston engines (diesel or semi-diesel engines):
8408.20 Engines of a kind used for the propulsion of vehicles of chapter 87:
8408.20.20 To be installed in vehicles of subheading 8701.20, or heading 8702, 8703 or 8704…
* * *
9902.25.31 Used compression-ignition internal combustion piston engines to be installed in vehicles of subheading 8701.20 or heading 8704 (provided for in subheading 8408.20.20):
There is no dispute that the subject merchandise is properly classified under subheading 8408.20.20, HTSUS. The only issue is the applicability of subheading 9902.25.31, HTSUS, which expired on December 31, 2009, to the instant entry, dated January 15, 2010.
On August 11, 2010 the President of the United States signed into law the Manufacturing Enhancement Act of 2010, P.L. 111-227, (the Act). The Act, known more commonly as the Miscellaneous Tariff Bill (MTB), modified existing provisions within the HTSUS including subheading 9902.25.31. See Section 2001 of the Act. In addition, Section 2002, provided for retroactive application for entries of merchandise that were described by the subheadings being modified in Title II of the Act (the title which provides for the modification of subheading 9902.25.31, HTSUS).
In particular, Section 2002 provides:
IN GENERAL.—The amendments made by this title apply to goods entered, or withdrawn from warehouse for consumption, on or after the 15th day after the date of the enactment of this Act.
RETROACTIVE APPLICABILITY.—
IN GENERAL.—Notwithstanding section 514 of the Tariff Act of 1930 (19 U.S.C. 1514) or any other provision of law and subject to paragraph (2), the entry of an article described in any heading of subchapter II of chapter 99 of the Harmonized Tariff Schedule of the United States (as amended by this title)—
which was made on or after January 1, 2010, and before the 15th day after the date of the enactment of this Act, and
with respect to which there would have been no duty or a reduced duty (as the case may be) if the amendment or amendments made by this title applied to such entry, shall be liquidated or reliquidated as though the entry had been made on the 15th day after the date of the enactment of this Act.
REQUESTS.—A liquidation or reliquidation may be made under paragraph (1) with respect to an entry only if a request therefor is filed with U.S. Customs and Border Protection not later than 180 days after the date of the enactment of this Act that contains sufficient information to enable U.S. Customs and Border Protection—
to locate the entry; or
to reconstruct the entry if it cannot be located.
PAYMENT OF AMOUNTS OWED.—Any amounts owed by the United States pursuant to the liquidation or reliquidation of an entry of an article under paragraph (1) shall be paid, without interest, not later than 90 days after the date of the liquidation or reliquidation (as the case may be).
DEFINITION.—As used in this subsection, the term ‘‘entry’’ includes a withdrawal from warehouse for consumption.
(Emphasis added)
The instant matter concerns the provision of the Act pertaining to its retroactive applicability, Section 2002(b), supra. We note that the Section 2002(b)(1) begins with the phrase, “[n]otwithstanding section 514 of the Tariff Act of 1930 (19 U.S.C. 1514) or any other provision of law and subject to paragraph (2)”. This phrase clarifies that in addressing requests for retroactive application of the Act via protest, entry amendment, etc., the entry and liquidation timing requirements of Section 2002(b) of the Act supersede all other inconsistent provisions of law. See Orlando Food Corp. v. United States, 432 F.3d 1318, 1322 (Fed. Cir. 2005).
Accordingly, Section 2002(b)(1) indicates that merchandise covered by Subchapter II of Chapter 99, HTSUS, may benefit from retroactive applicability if it is entered between January 1, 2010 and August 26, 2010 (fifteen days after August 11, 2010, the date of the Act’s enactment), and, per Section 2002(b)(2), the request for any necessary liquidation or reliquidation is made not later than February 7, 2011 (180 days after the Act’s enactment). The protest of the instant liquidation was filed on February 14, 2011, seven days after February 7, 2011. Accordingly, the instant merchandise does not fall within the scope of the retroactive applicability provisions of the Act and is thus not eligible for classification under subheading 9902.25.31, HTSUS.
HOLDING:
The subject merchandise is not eligible for duty free treatment under subheading 9902.25.31, HTSUS, which provides for “[u]sed compression-ignition internal combustion piston engines to be installed in vehicles of subheading 8701.20 or heading 8704 (provided for in subheading 8408.20.20)”. It is properly classified under subheading 8408.20.20, HTSUS, which provides for engines of a kind used in vehicles of subheading 8701.20, or headings 8702, 8703, or 8704, HTSUS. The column one, general rate of duty for goods of subheading 8408.20.20, HTSUS, is 2.5 percent ad valorem.
You are instructed to DENY this protest in full. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.CBP.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division